Office of the Attorney General
State of Texas

Re: Procedures for revocation of probation under section
14.12(a) of the Family Code of person in contempt of court for
refusal to make child support payments

Dear Mr. Felty:

You have requested this office's opinion regarding the
procedures applicable to the revocation of probation imposed
pursuant to section 14.12 of the Texas Family Code. Your inquiry
concerns the proper role of the state in the prosecution of
violations of probation under this section, and the applicability
of sections of the Code of Criminal Procedure to "child support"
probation. In particular, you seek answers to four questions:

1. Are violations of section 14.12(a) probation to be
prosecuted by the state?

2. If such violations are to be prosecuted by the state, are
they to be handled by the district or county attorney?

3. Are section 14.12(d) probationers entitled to court
appointed counsel at a revocation if they are indigent?

4. Do the bail and notice provisions of article 42.13 of the
Code of Criminal Procedure apply to a section 14.12(d)
probationer?

In the brief accompanying your request, you contend that the
dispositive question is whether contempt as provided in section
14.12 is civil or criminal in nature. You consider the
relationship between sections 14.09 and 14.12 of the Family Code
and rule 308-A of the Texas Rules of Civil Procedure, and
conclude that section 14.12 is an incident of civil contempt.
You further conclude that the state is not responsible for
prosecuting violations of section 14.12 probation and that
section 14.12 probationers are not entitled to court-appointed
counsel. We disagree with your final conclusion.

We observe at the outset that the procedures you inquire about
are those applicable to the revocation of probation, not to the
enforcement of a contempt order. However, in light of your
conclusions regarding the nature of the contempt provided by
section 14.12, a discussion of contempt is warranted. Although
not decisive of the issues you raise, such a discussion is
instructive in approaching what we believe to be the
determinative inquiry: the legislature's objective in enacting
section 14.12 of the Family Code.

Contempt may be characterized as either civil or criminal.
Civil contempt "consists in failing to do something which the
contemnor is required to do by order of the court for the benefit
or advantage of a party to the proceeding; while a criminal
contempt is all these acts of disrespect to the court or its
process," i.e., instances in which the state alone has an
interest in enforcement. Ex parte Wolters, 144 S.W. 531, 587
(Tex.Crim.App.1911). Despite this distinction, our supreme court
has declared that "a contempt proceeding is unlike a civil suit,
has some of the incidents of a trial for crime, and is quasi-criminal in nature." Ex parte Cardwell, 416 S.W.2d 382, 384
(Tex.1967); Ex parte Davis, 344 S.W.2d 153 (Tex.1961).
Accordingly, proceedings in contempt cases should conform as
nearly as practical to those in criminal cases. Deramus v.
Thornton, 333 S.W.2d 824 (Tex.1960); Ex parte Stanford, 557
S.W.2d 346 (Tex.Civ.App.--Houston [1st Dist.] 1977, no writ).
Relying upon these distinctions, you conclude that the contempt
envisioned by sections 14.09 and 14.12 of the Family Code is
civil in nature. One Texas court, however, has reached the
opposite conclusion:

Because the order punishes relator for a completed act which
affronted the dignity and authority of the district court, the
contempt is classified as criminal. Since relator violated the
[court's] order outside the presence of the court, the contempt
is a constructive contempt.

Ex parte Wilson, 559 S.W.2d 698, 700 (Tex.Civ.App.--Austin 1977,
no writ). Other courts have reached the same conclusion. See
Furtado v. Furtado, 402 N.E.2d 1024 (Mass.1980). Whether
classified as civil or criminal, contempt proceedings invariably
invoke certain aspects of the criminal process. Section 14.12
may be viewed as the legislature's attempt to observe the courts'
monition concerning the quasi-criminal nature of contempt. The
extent to which section 14.12 relies on the criminal process must
be determined from the legislative intent of that statute. The
inquiry into legislative intent must necessarily be prefaced by
an investigation of the conditions prompting the legislature to
enact section 14.12.

Prior to 1981, there existed only two methods of enforcing
child support orders in Texas: (1) contempt and (2) reduction of
the arrearage to judgment. See Family Code s 14.09. The purpose
of section 14.09 is to provide the courts with an efficient means
of enforcing payment of child support obligations. Harrison v.
Cox, 524 S.W.2d 387, 392 (Tex.Civ.App.--Fort Worth 1975, writ
ref'd n.r.e.). The provisions of section 14.09, coupled with the
requirements of Rule 308-A of the Texas Rules of Civil Procedure,
make enforcement of a contempt order particularly arduous when
the obligor parent is unwilling or unable to comply with the
order. The notice requirements of these provisions also allow
the defaulting parent to escape his/her obligation by secreting
himself/herself from law enforcement authorities. Testimony on
House Bill No. 985, House Judiciary Committee, public hearing,
recorded May 20, 1981. Imprisonment of a contemnor without
providing that person with notice or a hearing violates the
requirements of due process. Ex parte Sauser, 554 S.W.2d 239,
240 (Tex.Civ.App.--Dallas 1977, no writ). Furthermore, contempt
orders arising from a failure to make court ordered child support
payments are often an empty remedy, rendered unenforceable upon a
showing of

In addition to the procedural difficulties inherent in a
contempt action, a parent seeking to enforce a contempt order
faces other barriers. Even if successful, a dependent parent is
often left with a Pyrrhic victory:

The remedy of civil contempt puts an expensive and onerous
burden on the dependent parent who, even as a result of such
action, would receive nothing from an obligor parent who is not
in a position to pay. A jail term following from criminal
contempt profits no one. Finally, reduction to judgment is also
not effective against an obligor parent who disposes of non-
exempt property and spends his earnings as quickly as possible,
or who moves out of the county or state.

Bill Analysis to Senate Bill No. 105 (companion to House Bill No.
985), prepared for Senate Committee on Judiciary, filed in Bill
File to Senate Bill No. 105, 67th Leg., Legislative Reference
Library. The end result was summarized in a report to the Senate
Committee on Jurisprudence:

A recent study ... contends that fully 75 percent of absent
parents who were unwilling to pay were able to escape their
obligation. And of all fathers under court-ordered child support
obligations, almost half paid less than ten percent of the court-stipulated amount. (Footnotes omitted).

Report to the Senate Committee on Jurisprudence, Issues in Child
Support Enforcement, January 1981, at 1.

In view of the inadequacies of enforcement proceedings
initiated by private individuals, the Sixty-seventh Legislature
undertook to provide an alternative scheme that not only enhances
the chances of collecting child support payments, but also
preserves constitutionally guaranteed rights and privileges of
all parties. The product of that undertaking, section 14.12 of
the Family Code, is reproduced in germane part:

(a) If the court finds that a person who has been ordered to
make payments for the support of a child is in contempt of the
court for the failure or refusal to make a payment, the court may
suspend the imposition of the court's order of commitment and
place the person on probation on the condition that the person
shall continue the court-ordered child support payments with
court costs and on other reasonable conditions that the court
requires.

The terms and conditions of probation may include but shall
not be limited to the conditions that the probationer shall:

1. report to the probation officer as directed;

2. permit the probation officer to visit him at his home or
elsewhere;

3. obtain counseling on financial planning, budgeting
management, alcohol or drug abuse, or other matters causing the
defendant to fail to pay the child support payments;

4. pay all court costs.

....

(c) A court granting probation may fix a fee not exceeding
$10 per month to be paid to the court by the probationer during
the probationary period. The court may make payment of the fee a
condition of granting or continuing the probation.

The court shall deposit the fees received under this section
in the special fund of the county treasury provided by Subsection
(b) of Section 4.05 of Article 42.121, Code of Criminal
Procedure, 1965, to be used for the provision of adult probation
or community-based adult corrections services or facilities other
than a jail or prison. (Emphasis added).

Reports and testimony prior to the enactment of section 14.12
indicate that this statute was intended to codify the practice of
many courts to suspend or defer enforcement of contempt orders to
allow the willing parent to comply with his/her obligation. See
Report to the Senate Committee on Jurisprudence, supra, at 20;
Testimony on House Bill No. 985, supra. See generally, Anderson
v. Burleson, 583 S.W.2d 467 (Tex.Civ.App.--Houston [1st Dist.]
1979, no writ); Ex parte Hart, 520 S.W.2d 952 (Tex.Civ.App.--Dallas 1975, no writ). The underscored language above affirms
this inference. We also note the similarity between the quoted
language of section 14.12 and article 42.13, section 3d of the
Code of Criminal Procedure, the Misdemeanor Adult Probation and
Supervision Law.

The "probation" imposed pursuant to this subsection and article
42.12, section 3d(a) (for felonies) is not probation in the
strict sense. Rather, Texas courts have referred to this
procedure as "deferred adjudication," permissible under the terms
of article III, section 1 of the Texas Constitution. McNew v.
State, 608 S.W.2d 166, 176 (Tex.Crim.App.1980). Because of these
similarities, we conclude that "probation" as contemplated by
section 14.12 of the Family Code is an analogue to deferred
adjudication as provided in article 42.13, section 3d of the Code
of Criminal Procedure. We note, however, that section 14.12 does
not incorporate every provision of article 42.13--we cannot,
therefore, unequivocally declare that the legislature intended
every provision of article 42.13 to apply to section 14.12
probationers. The answers to your questions are dependent upon
the extent to which these statutes interact.

Upon the enactment of section 14.12, Texas became the first
state to authorize statutorily probated contempt in child support
cases. One may reasonably question the use of criminal
proceedings in what are essentially civil matters; other states,
however, regularly employ the practice of probating contempt
orders in non-criminal settings, especially in cases affecting
minors (e.g., child support, custody, truancy). See generally,
In re G.B., 430 N.E.2d 1096 (Ill.1981); Furtado v. Furtado,
supra; Anderson v. Anderson, 109 N.W.2d 571 (Minn.1961); Hill
v. Hill, 33 N.W.2d 678 (Mich.1948). Given the criminal and
punitive connotations of the word "probation" and the potential
for adverse stigmatization of persons placed on probation, courts
have utilized this remedy sparingly. Interim Report on Child
Support Enforcement in Texas, Senate Subcommittee on Public
Health and Welfare, Sixty-seventh Legislature, December 1982, at
15. The hesitancy of the courts to use section 14.12 comports
with what we construe to have been the legislature's intent--that
the benefits of probation inure to the collection of child
support obligations. Among these benefits are the protections
accorded persons granted probation.

Our analysis of this question has recently met with the
approval of two courts considering similar questions. The Fort
Worth Court of Appeals, after agreeing that contempt proceedings
are quasi-criminal, held the procedure to be followed in contempt
cases before civil courts is the same as that observed in
criminal cases. Ex parte Byram, No. 2-83-181-CV (Tex.App.--Fort
Worth, Dec. 1, 1983, no writ) (not yet reported). The United
States Court of Appeals for the Fifth Circuit reached a
comparable conclusion, holding that due process requires that an
indigent person held in contempt for failure to make court-
ordered child support payments receive the assistance of court-appointed counsel in such proceedings. Ridgway v.Baker, 720 F.2d
1409 (5th Cir.1983). The court declared that the right to counsel
turns not on the characterization of a proceeding as either
"criminal" or "civil," but upon whether a deprivation of liberty
may result. Id. at 1413. Bearing this point in mind, the court
concluded that in child support proceedings in this state,
defaulting parents face the possibility of receiving both civil
and criminal sanctions. Id. at 1414. Finally, the court
considered the suggestion that imposing the responsibility of
providing counsel on the state would prove too expensive and
administratively difficult a burden:

To some degree, the concern appears to be paradoxical. If
the contemnor is so lacking in means that he cannot afford
counsel, he is not likely to be able to pay child support. Under
Texas law, if the accused contemnor does not have the means to
pay the arrearage, he cannot be committed to jail for the purpose
of coercing him to make such payments. A contemnor can be
incarcerated only for failure to pay with his present funds, in
which case he is not indigent, or for what the state classifies
as criminal contempt, in punishment for his past contemptuous
behavior, and then only if it is determined that he could have
made those payments when they became due. If the parent is
indeed indigent the state may obviate the need for counsel by
announcing that imprisonment will not result from the proceeding.
Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383
(1979). If it holds the threat of jail over the defendant,
however, it must accord the defendant facing it due process,
including the right to counsel.

Ridgway v. Baker, supra, at 1415. Thus, when a proceeding
harbors the threat of imprisonment, as it certainly does in
probation revocation, the right to counsel, retained or
appointed, cannot be denied.

Regarding your fourth question, we observe that although bail
may be authorized pending probation revocation proceedings within
the discretion of the court, Ex parte Ainsworth, 532 S.W.2d 640
(Tex.Crim.App.1976), a person subject to a deferred adjudication
is entitled to bail under article I, section 11 of the Texas
Constitution. Ex parte Laday, 594 S.W.2d 102, 104
(Tex.Crim.App.1980) (en banc). In consonance with the decisions
of the court of criminal appeals and our foregoing
determinations, we conclude that section 14.12 probationers are
entitled to bail pending revocation proceedings. The provisions
of section 8(a) of article 42.13 to which you direct our
attention are applicable in the event that bail is denied. Given
the legislature's intention that willing obligor parents be
afforded every opportunity to comply with his/her child support
obligation and the prohibition against imprisonment of section
14.09 contemnors who are unable to make support payments, Ex
parte Englutt, supra, it follows that section 8(a) of article
42.13 of the Code of Criminal Procedure applies in the highly
unlikely event that a section 14.12 probationer is detained
pending revocation proceedings. We answer your fourth question,
therefore, in the affirmative.

You ask about the role of the state in proceedings to revoke
probation imposed pursuant to section 14.12 of the Family Code.
The discussion thus far makes it clear that section 14.12
probation requires significant involvement of the state. The
legislature's manifest purpose in enacting section 14.12 was to
invoke the resources of the state to relieve the dependent parent
of the financial strain attendant to the private system of
enforcement, to ensure compliance with child support obligations,
and to allow willing parents another opportunity to meet such
obligations. We, therefore, believe it is also within the
contemplation of the legislature that the state bear the burden
of prosecuting violations of section 14.12 probation.

Your second question asks whether the district or county
attorney is responsible for prosecuting section 14.12 violations.
We note that jurisdiction over family matters is vested in
district courts, family district courts, and certain statutory
courts having concurrent jurisdiction with the district courts in
family law matters. See Tex. Const. art. V, s 8 (divorce cases);
V.T.C.S. art. 1926a (Family District Court Act); Family Code ss
11.01(2) (suits affecting parent-child relationship, including
child support) and 21.03(4) (suits under Uniform Reciprocal
Enforcement of Support Act); V.T.C.S. art. 1970-358, s 2(e)
(county court of Hays county--concurrent jurisdiction over family
law matters with district court in Hays County); V.T.C.S. art.
1970-360, s 3(b) (county court of Webb County); V.T.C.S. art.
1970-367, s 3(b) (county court of Walker County); Armstrong v.
Reiter, 628 S.W.2d 439 (Tex.1982) (jurisdiction over family
matters rests exclusively in district courts and such other
courts as have concurrent jurisdiction by statute). Article V,
section 21 of the Texas Constitution provides that in counties
with both a county attorney and a district attorney, the
legislature shall regulate their respective duties. This office
has previously observed that the courts of this state construe
this provision to confer no authority on the county attorney to
act in respect to a duty which the legislature has not granted to
the office. Attorney General Opinion H-343 (1974) and cases
cited therein. In view of the forum involved in section 14.12
actions, we conclude that violations of that section are to be
prosecuted by the district attorney or the prosecuting attorney
who performs the functions of district attorney in that county.
We remind you that section 14.12 of the Family Code is an
extraordinary remedy rarely invoked by the courts and that the
legislature intended this section to facilitate, rather than
stifle, the collection of child support payments. Hence, we
expressly limit this opinion to apply in the improbable event
that the obligor parent refuses to satisfy the conditions of
section 14.12.

SUMMARY

In proceedings to revoke probation imposed pursuant to
section 14.12 of the Family Code, the state is to be represented
by the district attorney or the prosecuting attorney who performs
those functions of the district attorney in certain counties.
Under this section, indigent probationers are entitled to court
appointed counsel at revocation hearings. The bail and notice
provisions of article 42.13(8)(a) of the Code of Criminal
Procedure apply in the unlikely event that a section 14.12
probationer is detained pending revocation proceedings.